The Committee deliberated on the Constitution Seventeenth Amendment Bill [B6-2011]. Under clause 1 it was suggested that it would be preferable if consultation was a requirement and the provision should read “The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of courts in consultation with the affected courts”. It was further pointed out that this was in line with the views of the Constitutional Court Judges and the words “in consultation” should be added. In clause 2 the Committee took the decision that the Constitution Seventeenth Amendment Bill went along together with the Superior Courts Bill [B7-2011] therefore any matter that related to lower or magistrate’s courts should be settled in legislation that would deal specifically with these courts. In clause 3 the Committee briefly discussed the issue of whether to limit the jurisdiction of the Supreme Court of Appeal and convert the Constitutional Court into an apex court that would deal with all matters. Some Members were of the opinion that if there was nothing wrong with the current system than why should anything be done to fix it.
There was a lengthy debate under clause 4 where it was suggested that it would be preferable if the Labour Court did not have to appeal to the Supreme Court of Appeal and that appeals from the Labour Court should go to the Labour Appeal Court and those of the Competitions Appeal Court should go to the Constitutional Court. The motivation for this proposal was that the some Committee Members felt that there were too many layers of appeal; this in turn resulted in high legal fees and time wasted. There were some Members who were opposed to the suggestions regarding the jurisdictions of the courts because they were weary of the fact that the Supreme Court of Appeal in the past had overturned a lot of decision s from the Competitions Appeal Court. There was consensus insofar as the Labour Appeal Court was concerned. A Member also said that courts were about dispensing justice for all South Africans, it seemed that the Committee was inclined to want to increase the pace at which justice was dispensed for labour and competition matters, what of the others.
In clause 5 the words “on the basis of geography or subject matter, or both” in Clause 5(2)(a), were deleted as the Committee felt that they added no value. In clause 9 the following was proposed as an option: provision for a non-acting judge to be enabled to assume an acting position. It should also be added that the position of an acting Chief Justice should be filled with candidates either from full time judges of the Constitutional Court or those who serve as acting judges as well. Under clause 10 it was decided that 10(a) to (c) should be deleted as it related to magistrate’s courts which the Committee had agreed would not be dealt with in the Constitution Seventeenth Amendment Bill and Superior Courts Bill.
The Chairperson informed Members that the public hearings for the Legal Practice Bill had been postponed until further notice to afford those who requested an extension more time to make comments.
Constitution Seventeenth Amendment Bill [B6-2011]: deliberations
Mr J Jeffery (ANC) moved on to the Constitution Seventeenth Amendment Bill and said that it would not be possible to resolve anything now however it would be useful to go over everything at this time and identify the clauses where there was agreement. The Committee would also need to identify clauses where there was no agreement and craft a plan on how to reach consensus. It would be important for the National Assembly (NA) to finalise the Bill as well as the Superior Courts Bill before the end of the year.
Ms D Smuts (DA) supported the suggestion from Mr Jeffery.
Ms Smuts said that the issue on consultation was also mirrored in clause 8 of the Superior Courts Bill. There were two views under paragraph 5 of the Constitutional Court’s (CC) submission on this issue. It would be preferable if there was consultation; the best way to capture this would be to draft a provision that said in Section 165(6) of the Constitution “The Chief Justice (CJ) is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of courts in consultation with the affected courts”. The word “responsibility” implied consultation in any case, the judges were correct in endorsing a consultative style of leadership. The words “in consultation” should be added.
Mr Jeffery said that the Department should commence with drafting a document with proposed amendments. The proposal from the judges that there was over-regulation and that the detail should be spelt out in clause 8 of the Superior Courts Bill was a good one. Ms Smuts’s proposal should be an option.
Mr Johan De Lange, Principal State Law Adviser from the DoJ&CD, referred to paragraph 8 of the comments from the CC judges and said that the reason why some of the CC judges were in favour of “over” rather than “for” as expressed in Section 165(6) of the Constitution was that the section did not confer a real power but rather a responsibility on the CJ.
Mr Jeffery said that he did not have a problem with the amendment and the changes it proposed. What was problematic was the issue of magistrates versus lower courts. The Committee was dealing with the Superior Courts Bill therefore the focus should be on the superior courts and the issue of lower courts should be dealt with when the Committee crossed that bridge.
Adv S Holomisa (ANC) asked why there should be a reference to lower courts when the Bill that sat alongside the Constitution Seventeenth Amendment Bill was the Superior Courts Bill.
Mr De Lange said that the original draft of the Constitution Seventeenth Amendment Bill changed magistrate’s courts to lower courts and magistrates to judges of the lower courts. After a round of consultation it was decided that this would not be taken forward until the restructuring of the lower courts was dealt with altogether. The original intention was to avoid a situation where after dealing with the superior courts and amending the Constitution there would be a similar undertaking insofar as the power courts were concerned.
Mr S Swart (ACDP) said that he agreed with Mr Jeffery’s proposal.
Mr Jeffery said that the informal consensus from the Committee was that the Constitution Seventeenth Amendment Bill should deal with matters that only related to superior courts. Personally magistrates becoming judges was not favourable but this was something that could be debated at a later stage.
Mr Jeffery said that the question here involved whether the Committee want to change what was already in the Constitution and if so what wording did the Committee want to look at. The Committee should rather discuss process issues rather than the detail.
Ms Smuts said that the main thing to keep in mind was the creation of a really independent judicial branch as well as a judicial governance system. The issue of the jurisdiction of the CC was the most difficult and there was no agreement therefore the Committee should tag this and move on to other clauses for the time being. What the CC said under paragraph (c) on page two of their comments should be noted. There currently existed a twin peak system where one had the CC as well as the Supreme Court of Appeal (SCA); this was the problem however the only refinement would be to have one peak slightly higher than the other.
Mr Swart said that the suggestions were useful from both previous speakers.
Mr Holomisa questioned whether there was any need in fixing something that was not broken.
Mr De Lange said that this clause was a consequence of Clause 3 and thus it may have to be left out as well.
Mr Jeffery disagreed and said that this clause related to the Labour Court, Labour Appeal Court, and Competition Appeals Tribunal being governed by an Act of Parliament. It would be preferable if the Labour Court did not have to appeal to the SCA. Appeals from the Labour Court (LC) should go to the Labour Appeal Court (LAC) and those of the Competitions Appeal Court (CAC) should go to the CC. The clause did not provide for these courts as mentioned, it left the matter to an Act of Parliament and this was the preferred position.
Mr Swart said that the matter was not so straight forward, clause 4 served to decrease the jurisdiction of the SCA and this was a considerable step. The LAC was not so much a problem; it was the CAC that was problematic as it had been continuously overruled by the SCA. Surely it was not correct to exclude the jurisdiction of the SCA. Why was the SCA being excluded?
Ms Smuts said that the answer to that question was that there were too many layers of appeal. If the SCA was cut out then this would ease the financial burden of legal costs for businesses. The CJ had pointed out that there was difficulty where in the competitions hierarchy, the Competition Tribunal was not stocked by judges, this was the only thing that was worrying.
Ms D Schäfer (DA) said that the two clauses were inter-related and the issue should be tagged for a later discussion.
Mr Jeffery said that the clause restricted the jurisdiction of the SCA but not of the CC. There would be a link between clauses 3 and 4 in the sense that there would be wider jurisdiction of the CC. With the current wording of clause 3 the CC could effectively consider any matter. The issues raised by the clause could be parked for the moment. The clause in itself did not specify to what extent the powers of the CC would be reduced it simply provided for an Act of Parliament to determine that a matter did not have to go to the SCA. The Committee did not want too much litigation and too many appeal forums as this was costly, there should be one High Court and one other body to hear the appeal. There seemed to be consensus on the labour courts and the effect of this clause insofar as that was concerned.
Adv Holomisa said that courts were about dispensing justice for all South Africans, it seemed that the Committee was inclined to want to increase the pace at which justice was dispensed for labour and competition matters, what of the others? There was currently a SCA, was it envisaged that there would be a supreme court for every category of law be it labour or competition etc? It had already been established that the SCA was a court of appeal for all matters including constitutional ones.
Adv De Lange said that it was envisaged in the Bill that the CC would be the final court of appeal. When the Competition Act was drafted it was stated that the CAC would be the final court, there was no mention of the CC.
Mr Swart asked for Adv De Lange to research some of the cases where the SCA had overruled the CAC.
Mr Jeffery said that no court was always right and one might find that the decision of a lower court would be preferable. The Committee should limit the number of layers of appeal as they were too time consuming for the ordinary person.
Adv Holomisa said that if it were to be agreed that the CC would deal with constitutional matters and the SCA all other matters as forums of appeal on a last resort basis, then this would reduce unnecessary appeals.
Mr Jacob Skosana, Chief Director: Court Services in the DoJ&CD, informed the Committee that when this provision was discussed by the Minister and the Heads of Courts there were proposed options- one of which was that the CC was eager to deal with matters that came directly from the labour courts because those matters would have been dealt with by judicial offers. There was a different opinion for competition matters coming directly from the CAC to the CC because the Competitions Tribunal was not staffed with judicial officers, thus the CAC was a court of first instance. The safer option was that this matter would be left to an Act of Parliament to decide the appeal processes and not the Constitution.
Mr Swart said that this was helpful however the concern that arose from having the words ‘any Act of Parliament’ was that for example the Finance Committee might one day create an amendment that would one exclude the SCA on income tax matters and allow for direct access to the CC, the Committee would not know that this had happened, another Committee of Parliament in another portfolio could do the same thing as well, what then?
The Chairperson said that this clause was also contentious and the issues would be parked for now.
Mr Jeffery said that this clause related to the jurisdiction matter which the Committee had already decided to park. What was the value of adding the words “on the basis of geography or subject matter, or both” in Clause 5(2)(a), this should be left open.
The Chairperson said that this should come out.
Ms Smuts agreed.
Mr Jeffery said that this clause related to the magistrates issue which the Committee had already indicated that it preferred to deal with this in appropriate legislation.
Mr Jeffery pointed out that there were only consequential amendments in this clause.
Ms Smuts suggested that “non-acting” before the word “judges” in line 42 should be inserted. There was also the issue of whether provision should be made for an acting CJ or Judge President (JP) of the SCA.
Adv De Lange said that there was a provision in the Superior Courts Bill that provided for a Deputy Chief Justice (DCJ) or Deputy Judge President (DJP) stepping in.
The Chairperson asked if this should be in the Bill or the Constitution, as suggested by the CC judges in their submission.
Mr Jeffery said that the question was why? The Constitution dealt with appointments of judges. Would it not be correct then to say in the Bill rather than the Constitution prescribed what the powers of an acting DJP or DCJ should be? The CC judges did not motivate for why the powers of an acting DJP or DCJ should be in the Constitution. This should be left as it was until there could be motivation for why this should be in the Constitution.
Ms Smuts suggested that it could be stipulated that a non-acting judge could be elevated to an acting position. It should also be added that the position of an acting CJ should be filled with candidates either from full time judges of the CC or those who serve as acting judges as well.
Mr Jeffery said that this could be considered as an amendment and should be drafted as an option.
Adv De Lange said that clause 10(a) and (c) could be deleted if the Committee took the position that it did not want to deal with magistrate’s courts in this Bill. Clause 10(b) was a consequential amendment.
The Committee agreed.
The Chairperson adjourned the meeting and informed Members that the Committee would be dealing with the Superior Courts Bill tomorrow.
The meeting was adjourned.
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